Resistance Is Not Futile

I'm home with a broken ankle today and so was able to watch the stock market reaction to the release of Federal Reserve Chairman Ben Bernanke's speech on fiscal policy. Tens of thousands of brokers and investors were eagerly awaiting this speech to try to forecast the direction of the stock market. Many were ready to immediately execute trades based on the content of this writing.

I watched CNBC and the market reaction to the speech. The market almost immediately dropped 100 points, just minutes after the speech was released to the public and before he had even begun reading his speech. No human could possibly have read his speech that fast. At best they could have skimmed a few paragraphs. Yet millions, perhaps billions of dollars changed hands as the market plummeted. Then, as if by magic, in the next hour the market climbs back up that 100 points lost, and goes even higher. What the hell happened? Bernanke did not depart from his published speech.

A CNBC reporter on the floor of the New York Stock Exchange (I think it was Bob Pasini) provided a very interesting explanation, one which I predict will not be again repeated and may even be hushed up. I will not forget it because it made perfect sense to me and has implications for legal search in e-discovery.

Read the full commentary on LTN online.

Image: courtesy of Ralph Losey

EDI, Oracle Team to Put TAR to the Test

The Electronic Discovery Institute is ready to undertake an academic study of technology-assisted review and has chosen the study's chief scientists, Stanford University's Peter Glynn and Gerd Infanger, writes Monica Bay.

In an announcement Tuesday night, Patrick Oot, special counsel for e-discovery at the SEC and co-founder of EDI, said the study would build on research by The National Institute of Standards and Technology (NIST)'s Text Retrieval Conference (TREC) Legal Track and EDI's original study on document review. Oracle's litigation team will partner in the study, which will run tests on actual data from a closed matter.

Will the technological tools fare better than human reviewers? Turn to LTN online for the full scoop.

Image by Monica Bay

Cowen at ILTA Sees Big Data Feeding Managed Services

Managed services is about to change how law firms handle e-discovery and compliance in a very big way, reports Monica Bay from the International Legal Technology Association's annual conference at the Gaylord National in National Harbor, Md.

David Cowen, managing partner of the Cowen Group, delivered this prediction to the audience at an invitation-only breakfast held by the company. Electronically stored information will grow dramatically in the next year, according to Cowen. In response law firms will be turning to managed services -- outsourcing ESI services to the vendors.

This means job opportunities, with movement from legal shops to once stigmatized vendors -- with salaries topping out at $275,000 a year, plus bonuses. "Managed services is going to drive into the industry like a bulldozer," said Cowen.

Read the full report on LTN online.

Image by Monica Bay

E-Discovery Product Preview for ILTA

"New software for e-discovery, document management, and practice management will dominate news from the International Legal Technology Association show near Washington, D.C.," reports Evan Koblentz.

Releases of note include a yearly subscription model for Axcelerate's On-Demand e-discovery software and AccessData's debut of Summation 4.1 review software and AD eDiscovery 4.0.

Get the full report on LTN online.

Image courtesy of ILTA

'Kleen' Comes Clean From Predictive Coding

Plaintiffs in Kleen Products v. Packaging Corp. had sought to force defendants to employ predictive coding technology to ensure the accuracy of document production. Now, in the filing of a stipulation of the parties and an order signed by Judge Nan Nolan, plaintiffs have agreed that keywords can be used to search for documents relevant in electronically stored information collected before October 1, 2013, writes Sean Doherty.

Read the full story on the pages of LTN online.

Image by Clipart.com

Predictive Coding Watch: 'In Re: Actos'

Predictive coding is being put to the test in court again — this time in the Western District of Louisiana. According to a post by Greg Buckles on the eDiscovery Journal, a case management order by Judge Rebecca Doherty frames a "Search Methodology Proof of Concept" to examine the viability of Equivio's predictive coding tool Relevance for review and production in the matter — the defendant's e-discovery provider Epiq Systems uses Equivio Relevance.

The case is In Re: Actos (Pioglitazone) Products Liability Litigation, a multidistrict litigation consolidating 11 civil actions for pretrial proceedings. The plaintiffs allege that Actos, a prescription drug for the treatment of diabetes type 2, increases users' risk of developing bladder cancer — a risk the plaintiffs allege defendants concealed and failed to adequately warn consumers about.

LexisNexis E-Discovery in the Cloud

In a move in a strategy to bring all of LexisNexis e-discovery applications online, the company has brought forth a hosted version of its litigation document management software, Concordance Evolution, reports Evan Koblentz. Although, as Koblentz notes, hosted e-discovery software is less than groundbreaking, this is a significant move for Lexis.

Matt Gillis, vice president and managing director of the company's litigation tools and professional services group, says LexisNexis is focusing on more tightly integrating its e-discovery software products within hosted or installed environments. "We see an explosion of big data driving people increasingly to the cloud," he said, noting that the company expects  an increased rate of adoption and appetite for software as a service.

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ABA Adds Lawyers' Use of Technology to Model Rules

The 560-member ABA House of Delegates voted to adopt recommendations by the the Commission on Ethics 20/20 into the organization's Model Rules of Professional Conduct, reports LTN technology editor Sean Doherty.

Doherty looks specifically at the House's Recommendation 105A on a lawyers' use of technology and confidentiality, and 105B, technology and client development as particularly relevant to lawyers interested in how technology might impact their practice.

Image by ABA

Social Media's Place in the ABA's Digital Ethics

Now that the American Bar Association's House of Delegates has approved the Commission on Ethics 20/20 resolutions to update the Model Rules of Professional Conduct, Robert Ambrogi's 10 tips to ensure your social media practices won't run afoul of the ABA are especially relevant.

For example, remember that "the best way to stay out of trouble with any medium is to understand how it works." This could equally apply to social media in matters of preservation and discovery. Read the full article from LTN, "10 Tips to Keep Social Networking in Line With ABA Ethics."

Editor's note: This post has been updated to reflect the House of Delegates vote.

Image by Scotty Reifsnyder

Conference on Preservation Excellence in Portland

Recently, I have been invited to speak at the 2012 Conference on Preservation Excellence, sponsored by Zapproved.

To register and find additional information about the Conference on Preservation Excellence, please visit http://prex12.com.

Image: Law Technology News

Will the ABA Ethics Rules Get a Technological Upgrade?

With the American Bar Association's House of Delegates meeting today and tomorrow at the Hyatt Regency Chicago, six resolutions from the ABA Commission on Ethics 20/20 proposing changes to the Model Rules of Professional Conduct are expected to be put to vote: "Technology & Confidentiality," "Technology & Client Development," "Outsourcing," "Practice Pending Admission," "Admission by Motion," Model Rule 1.6 (Detection of Conflicts of Interest)."

Michael Arkfeld and Stephanie Loquvam in "Are Proposed Changes to ABA Ethics Rules Too Little, Too Late?" turn their attention to the resolutions, and specifically to suggested changes in the comments to the model rules that bring a lawyer's technological competence to bear upon his or her competent representation of a client.

In Comment 6 to Model Rule 1.1, the commission proposes adding the phrase "including the benefits and risks associated with technology" to a lawyer's responisiblity to keep current with changes in the law and its practice. This is a "game changer," according to Arkfeld and Loquvam, requiring that lawyers firmly understand how electronically stored information is created, stored, and retrieved.

For a better grasp on how these changes might affect the practice of law -- and what benefits and risks technology brings to the legal industry -- read the article on LTN online.

Image by Daniel Hertzberg

LiveOffice CEO, With Symantec in Mirror, Joins VC Life

Last week we wrote about Symantec firing CEO Enrique Salem, not long after the departure of Clearwell subsidiary CEO Aaref Hilaly for Sequoia Capital. Today, thanks to an announcement from Accel Partners, we're learning that the leader of another major Symantec acquisition, LiveOffice, has also left the building for VC life.

NIck Mehta quietly left Symantec in May. Now, "Nick will work with the team to identify breakthrough companies in enterprise applications and infrastructure," an Accel press release states.

There's no reason to believe any mass exodus is happening at Symantec, and by all accounts, the Salem move was unrelated to e-discovery. LiveOffice, too, is only on the left edge of the EDRM. But in the news business we have a saying: "One's a fluke, twice is a coincidence, and three is a trend" -- so this is something to keep watching.

Clearwell and LiveOffice aren't leaderless, though. They both are run by Symantec's Brian Dye, vice president, information intelligence group. Dye has been with Symantec since 2004 when it acquired his previous employer, storage management giant Veritas Software, for a massive $13.5 billion.

Wave Upgrades Its File Viewer for LexisNexis Concordance

Wave Software has upgraded its file viewer software, Trident Preview 2.0 for Concordance, Evan Koblentz reports. The latest iteration includes suport for TIFF images, the ability to launch Trident Preview within Concordance, and links to metadata files. For more on Trident and other upcoming upgrades to Wave applications, visit LTN online.

Image courtesy of Wave Software

Can Courts Get a Grasp on Ephemeral Data?

How should courts handle requests for data "that require extraordinary measures to preserve and collect?" Brian Esser and Judy Selby of Baker Hostetler examine two recent cases in Tennessee and New York involving the recovery of Internet browser histories, one of which required the services of an expert to create forensic images of a hard drive -- a pretty costly procedure.

Read the article on LTN online and ask yourself what you might do when your duty to preserve extends to temporary Internet files or the recovery of files from a hard drive's slack or unallocated space.

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Waiting for Godot to Deliver a Load File Standard

Waiting for a standard for load files instead of having to rely on a different file format when you're exporting data into different case management and review platforms such as Summation, Concordance, Relativity, Ringtail, etc.? According to ABA e-discovery chairman Steven Teppler, you might have to wait a little longer.

Teppler labels standards such as EDRM-XML, proposed by the Electronic Discovery Reference Model organization, as "premature" for an area in which "best practices are still emerging." Read the full report from Evan Koblentz on LTN online.

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